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MCWILLIAMS v. AT & T INFORMATION SYS.

January 16, 1990

ARLEEN A. THOMPSON McWILLIAMS, Plaintiff
v.
AT & T INFORMATION SYSTEMS, INC., Defendant



The opinion of the court was delivered by: COHILL, JR.

 MAURICE B. COHILL, JR., CHIEF UNITED STATES DISTRICT JUDGE.

 Presently before the Court in this employment discrimination case are defendant AT & T Information System, Inc.'s April 28, 1989 Motion to Dismiss plaintiff's complaint and plaintiff Arleen A. Thompson McWilliams' May 16, 1989 Motion to Compel Discovery. Jurisdiction in this Court is based on diversity of citizenship pursuant to 28 U.S.C. § 1332. For the reasons set forth below we will deny in part and grant in part defendant's motion and deny plaintiff's motion.

 FACTS

 In her complaint plaintiff outlined her employment history with AT & T. She averred that in September 1962, she began employment with an AT & T affiliate as a general clerk and service representative, continuing in that capacity until December 1966. She worked as a service representative for the business unit of Bell of Pennsylvania, another AT & T affiliate, from July 1968 until July 1978, when she was promoted to a management position as a training supervisor. From 1978 through September 1983, Ms. McWilliams assumed several management positions with Bell of Pennsylvania. She became a manager of AT & T's business office in September or October 1983. Ultimately in August 1985, she was appointed manager of the Monaca Phone Center Store.

 Plaintiff averred that she experienced physical and nervous exhaustion, necessitating a sick leave beginning May 23, 1986. A psychiatrist diagnosed her condition as severe depression and anxiety.

 Plaintiff alleged that approximately one week after she began her sick leave, her immediate superior, Maureen Bucci, insinuating that Ms. McWilliams was feigning illness during an employee strike, requested plaintiff to return to work. On July 28, 1986, Ms. McWilliams attempted unsuccessfully to return to work; on August 12, 1986, she resumed as manager of the phone store on a part-time basis. Plaintiff averred that she returned to a full work day schedule, "fully recovered and released to work by her physician," on August 26, 1986.

 Ms. McWilliams claimed that in September 1986, Ms. Bucci created a hostile, abusive and intimidating work environment by scrutinizing and criticizing her work performance, blaming her for inventory problems that occurred during her sick leave, suggesting that she look for another job, and imposing more stringent performance standards on plaintiff than upon other similarly situated managers.

 Ms. McWilliams alleged that on December 31, 1986, Ms. Bucci informed plaintiff that she would be assigned the position of Key Product Manager from January 1, 1987 to April 1, 1987 contingent on two conditions: 1) that she would remain in the position if she did a good job and Ms. Bucci decided to retain the position; and 2) that if the position were abolished, she would be declared surplus and entitled to AT & T's standard severance payment as a surplus manager.

 Ms. McWilliams averred that after she assumed the position of Key Product Manager, Ms. Bucci continued to harass her by placing her on probation without notice, verbally berating her in the presence of co-workers, criticizing her sales ability, threatening her with discharge because of inferior work and giving her a poor performance evaluation despite her place among the top 40% of managers in her region and her achievement of 106% of her sales objectives during 1986. In addition, Ms. McWilliams claimed that defendant imposed sales objectives on her that were significantly higher than those established for any other Key Product Manager, denied her access to the Zone secretary and provided her with business cards denoting her a "Key Product Specialist" rather than a "Key Product Manager."

 In May 1987, Ms. Bucci allegedly informed Ms. McWilliams that she could either resign or accept reduced employment as a Sales Associate. On May 22, 1987, defendant dismissed plaintiff. In her complaint plaintiff averred that she was denied termination benefits and other payments to which she was entitled.

 On July 23, 1987, plaintiff filed a complaint with the Pennsylvania Human Relations Commission ("PHRC"), alleging that defendant had discharged her in violation of Section 5(a) of the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. Ann. § 955(a). On November 29, 1988, the PHRC issued a right-to-sue letter. Thereafter, Ms. McWilliams filed a complaint in the Court of Common Pleas of Allegheny County, setting forth the following causes of action: 1) violation of Section 5(a) of the PHRA; 2) wrongful discharge; 3) intentional infliction of emotional distress; and 4) breach of contract. On April 12, 1989, defendant removed the case to this Court.

 DISCUSSION

 When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must consider the well pleaded allegations in the complaint to be true and view the complaint liberally in favor of the plaintiff. In addition, the Court should give the plaintiff the benefit of all inferences fairly deducible from the averred facts. Wilson v. Rackmill, 878 F.2d 772, 775 (3d Cir. 1989); Columbia Pictures Industries, Inc. v. Redd Horne, Inc., 568 F. Supp. 494, 501 (W.D. Pa. 1983), aff'd, 749 F.2d 154 (3d Cir. 1984).

 I. The Motion to Dismiss

 a. Violation of Section 5 of the PHRA

 In Count 1 of her complaint, Ms. McWilliams alleged that the severe depression and anxiety from which she suffered from May through August 1986 constitute a handicap under Section 5 of the PHRA and that defendant regarded her as suffering from such a handicap. She averred that her excellent employment record demonstrates that she is qualified for the positions she held at AT & T and that her handicap was not job-related. Furthermore, she alleged that, as a result of her handicap, defendant harassed, attempted to demote, discharged and otherwise discriminated against her, thus violating the PHRA. In her plea for relief, plaintiff requested the Court to enjoin defendant from unlawfully discriminating against her based on her handicap and to order reinstatement, backpay and compensation for lost fringe benefits, plus punitive damages and attorney's fees.

 Section 5 of the PHRA provides in relevant part that:

 
It shall be an unlawful discriminatory practice . . . .
 
(a) For any employer because of . . . [a] non-job related handicap or disability of any individual to refuse to hire or employ, or to bar or to discharge from employment such individual, or to otherwise discriminate against such individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment, if the individual is the best able and most competent to perform the services required.

 43 Pa. Cons. Stat. Ann. § 955.

 Both parties agree that the Pennsylvania Code applies the following definition of a handicapped person to the PHRA:

 
Handicapped or disabled person -- Includes the following:
 
(i) A person who:
 
(A) has a physical or mental impairment which substantially limits one or more major life activities;
 
(B) has a record of such impairment; or
 
(C) is regarded as having such an impairment.

 16 Pa. Code § 44.4(i).

 Additionally, Section 44.4(ii) provides the following definitions which pertain to this case:

 
(1) "mental impairment" includes mental illness;
 
(2) "major life activities" includes working;
 
(3) "has a record of such an impairment" includes a history of or a classification as a mental impairment that substantially limits ...

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